The loss of interest uccasioned by an attachment wrongfully laid is clearly an injury for which damages are recoverable against the wrong-doer.8AME....:...OORPORATIONS-SHARES-DIVIDENDS.

i.

Where shares of corporation stock are attached. the subsequently declared dividends are as much bound by the attachment as the Cfn'pU8 of the stock itself is.8AME-WRONGFUL ATTACHMENT-OOUNSEL FEES.

S.

Oounsel fees and other expenses (not taxable as costs) paid or incurred in defending against an attachment wrongfully laid are not recoverable as dam-. ages in an action upon a statutory recognizance given when the attachment was issued, conditioned for the eayment to the party aggrieved of" such damagel! as the court may adjudge. .

of Damages on Attachment Bond. In pursuance of written stipulation this case was .tried .by the court without the intervention of a jury. The following facts, therefore) are the court: (1) On July 17) 1878, the Monongahela National found Bank of Brownsville) the defendant here, upon a judgment for 39)056 recovered by it in this court against Alfred Patterson. caused an exeoution attachment to be issued out of this court, and by virtue thereof) on the 18th of the same month) caused to be attached, as the property of Patterson, 264 shares of the capital stock of the Fayette County Railroad Com pany) of the value of $60 a share, standing in the name of Samuel H. Jacobus, the plaintiff here; which stock, in fact, belonged toJa<::obus. (2) Before issuing the attachment the bank entered into and filed (conformably to the thirty-second section of the act ofassembly of June 16) 1836,) a recognizance conditioned for "the payment of such damages as the court may adjudge, to the party to whom such stock shall really belong) in case such stock should not be the property of the defendant." (3) Jacobus and the railroad. company, having been summoned as garnishees, appeared; and 011 September 30, 1878) the former pleaded nulla bona, and October 31, 1878, the latter pleaded in substance that the attached stock belonged to Jacobus, and not to Patterson. Upon a trial by jury there was a verdict) on .May 13, 1880, in favor of the garnishees; and on MI\Y 17) 1880, the court entered judgment for them on .the verdict. On July 2, 1880) the. bank sued out a writ of error) by virtue whereof aU proceedings in said attachment were removed into the supreme· court of the United States; which court. on November 19,1883, affirmed the said judgment. (4) There was in the hands of the railroad company at the time process was served a dividend of $264 on said stock; and between July 18, 1878, and November 19, 1883) 21 dividelldsof $264 each were declared by the said company on said stock, the first thereof on October 10,1878, and the others every three months thereafter. ,All said dividenrls were retained by the railroad company until after the. affirmance oCthE! judgment by the supreme court, when they were. paid to Jacobus, but withuut interest._ (5) Indl;lfending againat-llaid·attach,.

396

FEDERAL REPORTER.

ment Jacobus incurred and paid certain expenses, viz., $500 for counsel fees, and 354.20 for printing, etc. i but these expense"s were not taxable as costs in the case. T. C. Lazear, for plaintiff. Knox &- Reed, for defendant.
ACHESON, J., (after stating the facts as above.) The loss of interest ocoasioned by an attachment wrongfully laid is clearly an injury for which damages are recoverable against the wrongful litigant. Irwin v. Railroad Co.,43 Pa. St. 488; Oelrichs v. Spain, 15 Wall. 211, 230. But the clefen,dant's counsel contend that the dividends declared after the filing the pleas in the attachment suit were not subject to the attachment; of this view they cite the case of Benners v. Buckingham, 5l"hila". 68, "in which it is said that whatever comes into the hands of a garnishee in an execution attachment, after nulla bona pleaded, cannot be given in evidence at the trial of the issue. Whether this is consistent wit!I the decisfon of the supreme court of Pennsylvania in Sheetz v. Hobe'l'tSack, 20 Pa. St. 413, that the garnishee in an execution attachment is liable -for moneys of the defendant debtor coming into his hands after siirvice of the writ, need not now be considered. The doctrine declared in Benners v. Buckingham, if correct, has no application here. This was not the case of a distinct and independent fund coming into the garnishee's possession after plea filed. The dividends were but an incident to the stock,-the mere fruits thereof,-and were as much within the' grasp of the attachment as the corpus of the stock was. It has been adjUdged that an execution attachment becomes a lien on the debtor's stock from the date of the service on the corporation; and upon a judgment therein, and a sheriff's flale, the purchaser of the stock takes the judgment debtor's title as of the date when the attachment was served. Geyer v; Insurance Co., 3 Pittsb. R. 41. The defendant's counsel further contend that, as the judgment npon which the attachment issued was less in amount than the value of the stock, Jacobus had the right to demand arid-enforce payment of the dividends, notwithstanding the pendency of the; attachment; or, at any rate, that the railroad company by withholding the dividends became liable to payinlerest thereon to Jacobus. But· I; am of opinion that this case is not within the principle that a garnishee is ,not justified in withholding from his creditor more than is sufficient to:ihdernnifyhim from the attachment.. The railroad company was not bound: to take the risk of a decline in the value of the stock, and the dividends never reached anything like the amount of the judgment.' 'Besides, runder the ruling in Geyer v. Insurance Co., supra, had the attachmeJ.ll.there proceeded to judgment, execution, and sale, the dividends, as an inoident of the stock, would have passed to the purchaser; If the bank ,waS: satisfied with the security of the stock itself, and desired to ' lesgen the risk of litigation, it was its business to release the dividends fronl thtl"lielfof the attachment. It follows, therefore, from what has been isaid,' tbatthe plaintiff is justly entitled to recover in this action' by him for lost interest. \ "(')

BEARD V. ROTH. ' :

397;

But can. tile plaintiff recover for h,is counsel and other expenditures .in theattaehnwnt suit? This question, under the decisions of thesupreme court of the United States, must, I think, be answered negatively. Arcambelv. Wiseman, 3 Dall. 306; The Nuestra Senora De Regia, 17 Wall. 29. In a suit on an injunction bond, which bears a close analogy to the present action, that court held that counsel fees expended in getting. rid of the injunction were not allowable as part of the damages. Oelrichs v. Spain, supra. Itis to be observed that the statutory recognizance is not the foundation of the rightof action for the wrongful attachment ofstock. It is intended as a security for the payment of damages. The condition thereof is for the payment of" such damages as the court may adjudge." This, I apprehend, means such damages as are-legally recoverable. Now, in an action against the marshal for an illegal levy on teas, it was,held by, Judge BALDWIN that the plaintiff was not entitled to reoovermoneypaid: counsel, or other expenses incurred in prosecuting ,the suit. !wmranc8 Co.v. Oonard, Baldw. 138. And 'updnthis question ,the decisions,of the supreme court of Peimsylvania are in harmony with those of thafedJ.; eral courts. Good v.Mylin, 8Pa. St. 51; Haverstick v. Gas Ca.,29 Pa': St. 254; Stappv. Smith, 71Pa. St. 285. These cases hold that the plain..; tiff,whether suing in tort or contract, cannot recover in damages for counselfees or other expenses (not taxable us oosts) paid or incurred: in cstablishin; his right. t . And now,to-wit, March 31,1888, upon the facts found, and in ancewith the views expressed in the foregoing opinion, the court finds in favor of the plaintiff, and that as and for his damages he recover,of the defendant the sum of $1,201.65.

BEARD

et al. v.

ROTH.

(Circuit (Jourt E. D. Arkan8a8. June 11, 1888.)

1.

EXECUTORS AND ADMINISTRATORS-SETTLEMENT AND -AFTEB DEATH OF DEFENDANT-COLLATERAL ATTACK.

,.

..,

Where the accounts of an administrator are settled and filed in court, in his life,time, sho1Ving a balance due· the estate, the court ther,abY quires personal jurisdiction, and a judgment renger:ed after his death. con:firming the report and directing payment of the sum in his hands, is not void when attacked collaterally in a suit against the suret,y on the administrator!ll bond, though the judgment might have been reversed on appeal. ,. . Only creditors and distributees can maintain an.action agamst the' suteties of' a former administrator for money or property of the estate lost. wasted; or converted by him; so in suchan action the sUrety cannot plead itlb.ara former suit and recovery against him for the .same cause of actloL by the a(iministrator de bonis non, who sued without plaintiffs' consent, and' did not account to them for the money recovered. 8.
SAME-LIABILITY OF SURETy-PRESUMPTION.: , . , AGAINST SURETY-JUDGMENT-RESADJUDICATA. ".'

Where the surety on an admini,etrator's bond is discharged, and a new; b.ond given, the suretyis not liable for moneys' found due the estate 'on Ii. settle'· ment of the administrator'saecounts made ,thereafter, where it is not:llhowli